Articles Posted in Medical Malpractice (Health Care Liability)

It happens all too often: a patient wakes up from surgery to be advised all has gone well. But then weeks, months and sometimes years later, the patient starts experiencing symptoms such as pain or vomiting which do not seem to be related to any trauma or illness.   Doctors can find no explanation for the symptoms and, in some cases, the patient is treated as if the problem is in their head. Only after the symptoms become acute or when the patient and doctor are relentless in their search for an answer is the real culprit revealed: a retained object from the surgery. 

Retained objects come in many forms including scalpels, clamps, scissors, tubing, needles. But, the most common is sponges which account for about two-thirds of all retained objects. The most common method for tracking sponges is a simple manual count. But clearly, that old-fashioned method is not effective as it should be because each year roughly 4,000 cases of retained surgical items are reported in this country. 

Technology exists which is much better at preventing retained object cases. Sponges can be tracked through the use of a radio-frequency tag. The tag itself is tiny — roughly the size of a grain of rice and is embedded in each sponge. At the end of the surgery, the system can detect if any sponges were forgotten inside the patient. In a study conducted at the University of North Carolina at Chapel Hill, this system prevented 23 sponges being left in surgical patients over the course of just 11 months. And the cost for this added patient security? About $10.00 per procedure. The additional time to use the system before closing the patient? About 12 seconds.

Tennessee law requires almost always requires that a medical expert testify that a health care provider improperly treated the patient.  This expert must be familiar with the standard of care applicable to the health care provider at the time of the alleged wrong and must explain how the care actually given by the provider was inconsistent with what the standard of care required.  

A medical expert must also link the failure to follow the standard of care to an injury to (or death of) the patient.

There are some people (and even some lawyers) who think that the evidence of malpractice or injury is so clear that an expert witness should not be required.  It is true that sometimes an expert is not required in Tennessee medical malpractice cases, but such cases are extremely rare.  Never assume that your case will not require expert medical testimony unless an experienced Tennessee medical malpractice lawyer informs you that expert testimony is not required.

Tennessee law requires that appropriate action must be taken to initiate a Tennessee medical malpractice lawsuit (now known as a health care liability action) within one year of the date of the incident that causes an injury.  Cases are initiated by serving a formal notice on the persons or entities that may be sued in the case.  Filing the notice is a complicated endeavor, and it is recommended that you seek legal advice and a lawyer’s help in giving notice.  I strongly discourage a patient from attempting to comply with the notice law without the assistance of a lawyer.

Under certain circumstances, you may have additional time to file suit.  That is, the date the one-year period for taking legal action may begin on a date later than the date of the error that caused the injury or death.  However, determining whether one of these exceptions applies to your claim is a complicated, risky endeavor, and you are advised to never assume that the deadline for taking legal action will expire after the one-year anniversary date of the incident which caused the injury or death.  Seek the advice of an experienced Tennessee medical malpractice lawyer for help identifying whether any exception to the general rule applies under the facts of your situation.

Usually, a lawyer will need to review your medical records to determine when the deadline for taking legal action.  It can take six weeks or more to obtain the appropriate records from the health care providers.  Do not – I repeat, do not – wait eight or nine months after an injury has occurred to seek the advice of a lawyer.  An experienced medical malpractice lawyer needs time to obtain and evaluate the medical records.

In Tennessee the vast, vast majority of physicians have medical malpractice insurance.  The medical malpractice insurance company not only hires a lawyer to defend the doctor in the event a medical malpractice (now called health care liability) lawsuit is filed in court but also pays money toward any settlement or judgment in the case.  The amount that the company will pay is an amount up to the insurance policy limits actually purchased by the doctor or the company the doctor works for.  The company also employs a team of professionals who evaluate claims and supervise the litigation process.

In fact, in over 30 years of representing patients in medical malpractice claims against doctors and other health care providers, I have never come across a single doctor in Tennessee who did not have professional liability insurance.  There are states, such as Florida, where there appears to be a significant number of uninsured doctors, but that is not an issue in Tennessee.

One reason for this is that doctors own the largest physician professional liability insurance company in the state and, in essence, sell insurance to themselves.  A large number of the doctors who do not work for educational centers (like Vanderbilt) or as employees of hospitals purchase professional liability insurance coverage from this company, State Volunteer Mutual Insurance Company.  Insurance rates for doctors are less than they were twenty years ago (after adjusting for inflation).

A Tennessee medical malpractice lawyer must prove the following things to prove a medical malpractice (now called a health care liability) case in Tennessee:

1.  The standard of care for the health care provider.  For example, if the claim is that a family doctor failed to timely diagnose an infection, the patient’s lawyer must prove what a family doctor should do when presented with the information available to the doctor at the time of the alleged failure to diagnose the infection.  The standard of care must be proved by another doctor of the same or similar specialty, and that doctor must practice medicine in Tennessee or a state adjoining Tennessee.

2.  The failure of the health care provider to follow the standard of care.  Thus, using the same example, the patient’s lawyer must demonstrate that the doctor did not comply with the standard of care, that is, that the doctor either did something the doctor should not have done or failed to do something the doctor should have done.

Tennessee law requires that certificate of good faith be filed with the Court at the time a medical malpractice (now called a health care liability) lawsuit is filed. 

The certificate of good faith form is found on the website of the Tennessee Administrative Office of the Courts.   The form requires the signer to certify that he or she has consulted with and has a signed statement from one or more experts who say that the case has merit.  

The failure to file the form with the lawsuit will result in dismissal of the case.

Tennessee law requires that formal notice of medical malpractice (now called health care liability) claims must be given before a lawsuit can be filed.

Notice must be given before the one-year statute of limitations (the typical deadline for filing suit in medical malpractice cases) expires. The notice must include certain information and must be given or send in a way required by statute to each health care provider who is going to be sued.  Failure to give the right information or to send or deliver the notice in the way required by law will result in a dismissal of any later lawsuit against that health care provider.

(To be 100% accurate, the failure to give notice will result in dismissal of any later case against the health care provider.  The Tennessee Supreme Court has not yet decided the impact of the failure to give notice precisely as called for in the statute.  However, you should assume that notice must strictly follow the dictates of the statute until the Tennessee Supreme Court decides this issue.)

An increasing number of surgeries are conducted with the assistance of robots – and the medical malpractice claims arising from such surgeries is beginning to increase.

Doctors who perform robotic surgery sit and video-game style consoles and watch a high-definition monitor hooked to a 3-D camera that shows the work being done inside of the patient.  The arms of the robot are equipped with surgical tools, and the arms are manipulated by a combination of foot pedals and hand controls.    Watch this video to understand how the da Vinci Surgical System is supposed to work.

A question that has arisen is whether the doctors using these robots are properly trained.  To date, no fewer than 10 lawsuits have been filed arising injuries occurring during robotic surgery, and training is an issue raised in most lawsuits.

I have represented patients in medical malpractice (now called health care liability) cases in Tennessee or over 31 years.  I have represented patients against a wide variety of health care providers, from pathologists to neurosurgeons, hospitals to nursing homes, dialysis centers to public health clinics.  I have had relatively few cases against dentists, and relatively few dental malpractice cases are filed in Tennessee.  Why  are there so few dental malpractice cases?

Because most "errors" by dentists result in problems that do not give rise to a major medical issue that justifies the time and expense of litigation.  Most cases involve a single lost tooth, nerve damage that is uncomfortable but not disfiguring or has a significant impact on life, or similar issues.  I am not minimizing these injuries – I am simply saying that this type of injury frequently does not rise to the level that justifies the time and expense of a professional liability lawsuit. 

Professional liability lawsuits are aggressively defended.  Expensive experts are required in virtually every case.  These factors impact the ability and willingness of lawyers to accept cases with minor injuries.

In 2010 the Tennessee General Assembly adopted the phrase "health care liability action" to encompass virtually all types of claims against health care professionals.  This claims include all claims formerly known as "medical malpractice"  or ‘medical negligence" cases.

The Legislature took this action because it was unhappy with a decision of the Tennessee Supreme Court that made certain ministerial acts by certain health care providers regular negligence rather than medical negligence cases.  The practical impact of the court’s ruling was to reduce the cost of bringing certain types of cases, particularly in some of the cases involving nursing homes, because it eliminated the need for expert testimony in those cases.  The Legislature intended to make it more difficult (expensive) to bring these lawsuits, so it broadened the definition of "medical malpractice" and "medical negligence" and then changed the name of this type of case to "health care liability" cases.

This action was one of multiple actions taken by the Tennessee General Assembly to make it more difficult for patients to file valid claims against Tennessee hospitals, nursing homes, doctors, nurses and other health care providers.  All of these actions combined have resulted in a drop in the number of such cases by almost 50%.